action against the Plaintiffs with regard to the Encirclement Provision.
Defendants filed a summary judgment motion and asked this Court, inter alia, to dismiss Plaintiffs' case because the Plaintiffs seek pre-enforcement judicial review in the absence of any administrative enforcement actions resulting in final agency action.
Since federal courts exercise limited jurisdiction, this Court can only review the actions of an agency if authorized by statute. Bell v. New Jersey, 461 U.S. 773, 777, 76 L. Ed. 2d 312, 103 S. Ct. 2187 (1983). In order to review the NOAA's interpretation of the Encirclement Provision, this Court must base its jurisdiction on 5 U.S.C. § 704 which permits federal district courts to review "final agency action" for which there is no other adequate remedy in Court. Administrative Procedure Act § 10(c), 5 U.S.C. § 704. Since "final agency action" is an independent jurisdictional requirement it must be met first before moving on to the question of ripeness. Public Citizen v. Office of U.S. Trade Representative, 297 U.S. App. D.C. 287, 970 F.2d 916, 921 (D.C. Cir. 1992). The requirement of "final action" recognizes that courts must not interfere with the executive function, whether exercised by executive officials or administrative agencies, by entertaining a lawsuit that challenges an action that is not final. National Automatic Laundry & Cleaning Council v. Shultz, 143 U.S. App. D.C. 274, 443 F.2d 689, 698 (D.C. Cir. 1971).
By enacting a provision permitting judicial review of "final agency action" for which there is no other adequate remedy in a court, Congress intended to cover a broad spectrum of administrative actions, and the Supreme Court has reaffirmed that intent by holding that the Administrative Procedure Act's generous review provisions must be given a hospitable interpretation. Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967); See, National Automatic Laundry & Cleaning Council v. Shultz, 143 U.S. App. D.C. 274, 443 F.2d 689, 695 (D.C. Cir. 1971). Judges reviewing administrative actions must interpret the "finality" element in a flexible and pragmatic way. Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967). The term "agency action" includes any "rule", and that in turn is defined by the Act as "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy." Administrative Procedure Act §§ 2(c), 2(g), 5 U.S.C. §§ 551(4), 551(13). The term "agency action" thus embraces an agency's interpretation of its law, and it is the finality of that action that a Court must consider. Id. The Supreme Court has explained that the relevant considerations in determining finality are whether the process of administrative decision-making has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences flow from agency action. Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 27 L. Ed. 2d 203, 91 S. Ct. 203 (1970). A court must decide whether the agency's position is definitive and whether it has a direct and immediate effect on the day-to-day business of the parties challenging the action. Natural Resources Defense Council, Inc. v. E.P.A., 22 F.3d 1125, slip op. at 14 (D.C. Cir. 1994). An agency position is not final if it is only the ruling of a subordinate official. Franklin v. Massachusetts, 120 L. Ed. 2d 636, 112 S. Ct. 2767, 2773 (1992). The Court must distinguish a tentative agency position from a situation where the agency views its deliberative process as sufficiently final to demand compliance with its announced position. Natural Resources Defense Council, Inc. v. E.P.A., 22 F.3d 1125, slip op. at 14 (D.C. Cir. 1994). The absence of a formal statement of the agency's position is not always dispositive, otherwise an agency could avoid judicial review simply by choosing the form of a letter to express its definitive position on a general question of statutory interpretation. Id. In addition, agency inaction may represent effectively final agency action that the agency has not frankly acknowledged. Her Majesty the Queen v. United States EPA, 286 U.S. App. D.C. 171, 912 F.2d 1525, 1531 (D.C. Cir. 1990). Even if the agency claims to be in the process of rulemaking the Court must be aware that the agency always retains the power to change its policies. If the possibility of unforeseen amendments were sufficient to render an otherwise fit challenge unripe, review could be deferred indefinitely. American Petroleum Institute v. United States EPA, 285 U.S. App. D.C. 35, 906 F.2d 729, 739-40 (D.C. Cir. 1990).
The Court has found final action in a wide array of pronouncements and communications having the contemplation and likely consequence of "expected conformity". National Automatic Laundry & Cleaning Council v. Shultz, 143 U.S. App. D.C. 274, 443 F.2d 689, 698 (D.C. Cir. 1971). The spectrum of communications ranges from obvious agency action such as adjudications and regulations to informal pronouncements such as opinion letters. Informal pronouncements of policy provide a court with more difficult finality issues. Plaintiffs case, involving the legal opinion letter of the NOAA General Counsel, presents the Court with this precise problem. In other words, the Court must determine whether the February 25, 1994 letter of the NOAA General Counsel qualifies as "final agency action" under 5 U.S.C. § 704.
The case of National Automatic Laundry and Cleaning Council v. Shultz, 143 U.S. App. D.C. 274, 443 F.2d 689 (D.C. Cir. 1971), offers guidance in the determination of whether informal agency opinion letters qualify as "final agency action." In that case the attorney for the National Automatic Laundry and Cleaning Council (hereinafter, "NALCC") sent a letter to the Administrator of the Wage and Hour Division of the Department of Labor inquiring about the effect of recently passed amendments to the Fair Labor Standards Act on the status of employees of coin-operated laundries. The Administrator replied to the NALCC attorneys and stated that the legislative history of the amendments clearly indicated that the employees of coin-operated laundries were covered by the amendments' minimum wage and overtime requirements. The NALCC then brought a declaratory judgment action challenging the Administrator's interpretation of the amendments.
The court found that the Administrator's advisory letter constituted "final agency action".
But the court also couched its ruling in restrictive language that pertains to the case presently before this Court. The court held:
When a published interpretation represents the initial views of an agency, approved by the Commission or person who heads the agency, when it is the product of the process provided by the agency for taking into account the position of agency staff as well as the outside presentation, when the interpretation is not labeled as tentative or otherwise qualified by arrangement for reconsideration, it has the feature of "expected conformity" stressed in Abbott Laboratories. Id. at 702.